“SECRETARY OF LABOR,Complainant,v.BETHLEHEM STEEL CORPORATION,Respondent.UNITED STEELWORKERS OFAMERICA, LOCAL UNION 6787,Authorized EmployeeRepresentative.OSHRC Docket No. 79-2597_ORDER_This matter is before the Commission on a Direction for Review enteredby former Chairman Robert A. Rowland on April 12, 1982. The parties havenow filed a Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that this caseraises no matters warranting further review by the Commission. The termsof the Stipulation and Settlement Agreement do not appear to be contraryto the Occupational Safety and Health Act and are in compliance with theCommission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order. This is the final order of the Commission inthis case. See 29 U.S.C. ?? 660(a) and (b).Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: _October 12, 1990_————————————————————————ELISABETH DOLE, SECRETARY OF LABOR,Complainant,v.BETHLEHEM STEEL CORPORATION,Respondent.OSHRC Docket No. 79-2597*STIPULATION AND SETTLEMENT AGREEMENT*In full settlement and disposition of the instant matter, it is herebystipulated and agreed by and between complainant, the Secretary ofLabor, and respondent, Bethlehem Steel Corporation, as follows:1. This case is before the Commission upon respondent’s contest of acitation which, as amended by the Secretary’s complaint and by motion,alleged willful violation of the general duty clause, 29 USC ?654(a)(1).The citation was affirmed by the Commission’s administrative law judge,and a penalty of $10,000 was assessed. (Decision and order of March 11,1982.)2. The Secretary hereby amends the proposed citation to reclassify theviolation of the general duty clause from Type of Violation \”Willful\” toType of Violation \”Section 17 of the Occupational Safety and Health Act.\”3. The Secretary hereby amends the proposed penalty to $6,500.4. Respondent hereby withdraws its notice of contest to the citation andto the notification of proposed penalty as amended above.5. Respondent states that it has already taken steps to bring itself incompliance with 29 CFR 1910.147 at its Burns Harbor, Indiana facilityand that such steps will be completed within 60 days from the date ofthis agreement.6. Respondent agrees to submit to the OSHA Area Office $6,500 in fulland complete payment of the penalty within 30 days of the date of thisAgreement.7. Respondent certifies that a copy of this Stipulation and SettlementAgreement was posted at the workplace on the ____day of August, 1990, inaccordance with Rules 7 and 100 of the Commission’s Rules of Procedures.In addition, a copy of this Stipulation and Agreement was served, bypostage prepaid first class mail, on Mr. Paul E. Gipson, Jr., USWA Local6787, 1086 N. Max Mochal Highway, Chesterton, Indiana, on the ____day ofAugust, 1990.8. This Stipulation and Settlement Agreement is made to avoid furtherprotracted litigation and shall not be construed as an admission byrespondent of fault or liability in any other case, cause or proceedingwhatsoever other than one arising under the Occupational Safety andHealth Act.9. Complainant and respondent will bear their own litigation costs andexpenses.Dated this _31_ day of August, 1990.Bethlehem Steel CorporationRobert P. DavisSolicitorCynthia A. AttwoodAssociate Solicitor forOccupational Safety and HealthDonald S. Bauman, Esq.Daniel J. MickCounsel for RegionalTrial Litigation————————————————————————SECRETARY OF LABOR,Complainant,v.BETHLEHEM STEEL CORPORATION,a Corporation,Respondent.OSHRC Docket No. 79-2597_DECISION AND ORDER_Appearances:T. TIMOTHY RYAN, Esq., Solicitor of LaborHERMAN GRANT, Esq., Regional Solicitor,JAMES BOWERS, Esq., Office of the Solicitor,Chicago, Illinois, for Raymond J. Donovan, Secretaryof Labor, U.S. Department of Labor, Complainant.JACK D. SHOFFNE Esq., for Bethlehem Steel Corporation,Respondent.BOBRICK, JudgeThis proceeding was commenced pursuant to Section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. 651, _et seq.,_(hereinafter referred to as the Act), wherein Respondent, BethlehemSteel Corporation, contested a Citation issued by Complainant, RaymondJ. Donovan, Secretary of Labor, U.S. Department of Labor. The Citationcharged Respondent with a serious violation of the general duty clauseof the Act, 29 U.S.C. 654(a)(1), Section 5 (a) (1).[[1\/]] The Citation,as amended in the Complaint, alleged that Respondent had violatedSection 5(a)(1)\”by failing to furnish to employees of the Respondent employment and aplace of employment which were free from recognized hazards that werecausing or were likely to cause death or serious physical harm toemployees of the Respondent in that: employees were not prevented fromworking on equipment without having positive control of the sources ofpower to the equipment and, where applicable, positive control of thematerials in process by the equipment through the installation by theemployee of the employee’s personal padlock or equivalent device in sucha manner as to prevent the unexpected application of power to theequipment or the unexpected exposure of the materials in process in thatthe employer failed to implement or use an effective lockout procedureor equivalent positive protection for minor repairs or adjustments tolance port seals on #3 Hood in the Basic Oxygen Furnace (BOF) Area. TheFlag and Tag Procedure utilized by the employer for above-mentionedminor repairs and adjustments did not provide such positive control.\”Trial in this matter was begun February 21, 1980. On April 21, 1980, theComplainant, at the conclusion of his case, presented a Motion to Amendthe Complaint and Citation wherein the characterization of the Citationwas to be changed from serious to willful-serious, as defined by Section17(a) of the Act (Tr. 1035). After argument was afforded each party, theMotion to Amend was allowed with leave granted Respondent to recall allwitnesses who had given testimony that may have related to thosesubstantive matters giving rise to the amendment, and allowingRespondent to expand upon its cross examination of these witnesses as itbelieved necessary (Tr. 1122-1124). Respondent declined to recall anywitnesses (Tr. 1786, 1787). The trial was concluded in June, 1980. Thismatter is now ready for decision._FACTS OF THE CASE_Respondent is a corporation engaged in the steelmaking industry,operating a large steelmaking facility in Burns Harbor, Indiana. Steelproducts made at Respondent’s facility are shipped outside the State ofIndiana. On April 3, 1979, pursuant to an employee complaint, anOccupational Safety and Health Compliance Officer was detailed byComplainant to Respondent’s workplace to conduct a safety inspection(Tr. 872-874, 949, Ex. C-4). The subject of the safety inspection was \”asafety procedure utilized by the Respondent at its Number 3 Basic OxygenFurnace to protect employees who might be performing repair orinspection work on its furnaces from the hazards associated with theinadvertent start-up of the furnace machinery\”. The inadvertent start-upof machinery could expose employees to the possibility of death orserious physical harm since their work placed them in close contact tothe machinery and equipment comprising the Basic Oxygen Furnace(hereinafter referred to as BOF).The investigation specifically concerned itself with the allegedinadequacy of Respondent’s \”Flag and Tag Rule\”, a work safety ruledesigned to prevent inadvertent activation of opened and tagged outpower switches controlling the flow of power to equipment and machinerylocated on the BOF. As a result of the investigation, the Complainantconcluded that Respondent’s Flag and Tag Rule was an insufficient meansto protect employees from the hazards associated with inadvertentstart-up of the equipment when the employees were performing repair orinspection work. Accordingly, a Citation was issued alleging a violationof the general duty clause of the Act. The abatement provisions of theCitation required that Respondent utilize a positive lockout system onmain power cutout switches which isolate sources of power from theequipment under repair. This would essentially require that employeesuse personal padlocks issued by the employer to lock the power switch inthe open position. Respondent contested the Citation maintaining thatits Flag and Tag Rule was an effective means to prevent inadvertentstart-ups at its Number 3 BOF and further that the padlock lockoutsystem was not feasible and presented other hazards.The cited area, which is representative of the three basic oxygenfurnaces operated by Respondent, consists of a large multi-story steelstructured building housing a tiltable metal melting furnace (Tr.1150-1151, Ex. C-1). The furnace is open at the top having a large workplatform area just above its opening. The work platform makes up onestory of the steel building. Located at the work platform area are twovertically situated I-beam type structures (approximately 70 feet inlength) which act as a carriage for a large oxygen carrying pipereferred to as a \”lance\”. Auxiliary equipment is also contained withinthe building and consists of teeming cars used to carry scrap metal to ascrap box, a teeming ladle car used for carrying away the molten metaland a teeming car used to transport the slag away from the furnace (Ex.C-1).The BOF essentially starts its operation with the furnace rotating to atilt position, the opening of the furnace is set at an angle and in linewith a scrap box hopper. The BOF is then charged with scrap metal afterwhich it rotates back to the upright position. Heat is then applied tothe furnace.During the heating process the lance is slewed from its parked positionat the side of the work platform, traversely moving toward the openingin the work platform over the top of the furnace, finally beingpositioned at a point somewhere above the center of the opening to thefurnace. The lance, at the appropriate time, is progressively loweredinto the furnace to a point where the bottom of the lance is a setdistance above the molten metal (Tr. 21-27, 1150-1155, 1165). Two largesemi-circular metal plates, referred to as \”lance port seals\”, moveacross the top of the furnace and surround the lance, thereby sealingthe furnace (Ex. C-2, C-3). Oxygen is then introduced into the metalmelting process. Once the metal is melted, the lance port seals areopened and the lance withdrawn through the seals into its upper positionand slewed to its parked position. The furnace is rotated and tilted sothat the molten metal can be tapped from the furnace. Lastly, thefurnace is again rotated and tilted so that the slag in the bottom ofthe furnace is allowed to pour from the furnace into the slag pots.The control and operation of all three of Respondent’s BOF’s, whichinclude the slewing and lowering of the lance, the activation of thelance port seals, the tilting and rotating of the furnace, andintroduction of oxygen through the lance, is done from a control roomlocated at the side of the Number 2 BOF some 200 feet distant from theNumber 3 BOF. The control room is referred to as the \”Pulpit\” and theoperator is known as the \”Pulpit Operator\”. The pulpit operator monitorsa panel which contains various lights that show whether electrical poweris going to the various motors that tilt and rotate the furnace and slewand lower the lance (Tr. 20-27). The pulpit operator can observe theimmediate area at each of the lance port seals by means of a black andwhite TV monitor (Tr. 34-38). However, the visual resolution. of the TVscreen leaves much to be desired in its ability to clearly discernemployees who might be working at the lance port seal area (Tr. 43, 78,83, 84).Approximately every three months the furnace must be completely rebuiltand the larger components of the furnace repaired or overhauled. Thistakes about four and one half to twelve days, and is referred to byRespondent as \”relining\” (Tr. 1136-1139, 1181, 1437). All other repairwork (occurring when the BOF is in operation) is referred to as minorrepair work (Tr. 108, 145). Employees regularly throughout the work weekperform repair work on or around the three furnaces. This includes workon the lance port seals and on components around the top of the furnaceas well as work on the teeming cars and ladles (Tr. 102-107, 143, 174,Ex. C-7). The job of performing repair work to the lance port seals andother components of the furnace can become hazardous by reason of thepossibility of inadvertent activation of either the lance drive motorsor furnace tilt motors. This is true even though the employees who areto perform the repair work are to first isolate power going to thosemotors driving the equipment at the BOF. Isolation of power is done byhaving main power electrical switches placed in the open position, orpneumatic or hydraulic valves closed, thereby disrupting the flow ofpower to the motors driving equipment on the BOF during the period whenthe repair work is to take place. Employees working on the teeming carswould also have the main power switches controlling power to the motorsthat drive the cars placed in an open position.The unexpected activation of the tilt furnace motors could cause thefurnace to tilt, throwing men from the platform area to the ground (Tr.42, 52). When working on the lance port seals, the furnace is normallyturned upside down to prevent extreme heat and smoke being introducedinto the work area, which could happen if the top of the furnace wasinadvertently rotated to its upright position (Tr. 127, 128).Other serious hazards can occur from the unexpected movement of thelance carriage. If the lance were unexpectedly slewed into an area wherethe employees were working, the employees could be hit by the carriage(Tr. 171, 950, 951). An additional hazard exists to workers who may beworking on the upper platform over the furnace from any sudden movementof the lance which could cause large pieces of hardened metal, which hadadhered to the lance during the melting process, to fall from the lanceitself. Any movement of the lance causes these hardened metal globules,referred to as \”skull\”, to dislodge from the lance and fall into thework area where it could hit an employee. All the above discussedhazards could cause death or serious physical injury to Respondent’semployees (Tr. 126, 128, 883).In order to prevent injuries which could occur from inadvertent orunexpected start-up of machinery under repair or inspection, whether atthe BOF or any other work area, the Respondent maintained a work ruleknown as the \”Lock-Out, Flag and Tag Rule\”. This rule is a part ofRespondent’s general safety rules and is published in a handbook givento all employees (Ex. C-5, C- 5-a). The work rule is also published aspart of various Division safety rules, (Ex. C-6, C-6-a), and ismentioned in written job safety procedures known as Job Safety Analysis(Ex. C-8, Tr. 59, 109, 405, 455).Respondent’s Flag and Tag Rule was designed to work as follows:Employees who were to make repairs or inspections to machinery orequipment, which if moved or cycled could result in their injury, wereto have the main power switch controlling the machinery under repairopened (valves closed) and a flag and tag attached to the opened switchor closed valve. With the main power switch opened (or valve closed)power, whether electrical, hydraulic or pneumatic, capable of cycling orstarting the equipment would be isolated from the equipment therebypreventing its activation. The flag and tag was to be a warning to allother employees against closing the power switch or valve, which wouldcause a restoration of power to the machinery undergoing repairs.The rule specifically provided that no one other than the person whoplaced the flag on the switch or valve was ever to remove the flag ortag. For example, employees who were to perform repair work on theNumber 3 BOF would have the electrical breaker controlling power to thefurnace tilt motors, lance slew motors and lance hoist motors placed inan open position, affixing their flags to the open switch. In caseswhere several switches were next to one another a wood bar would beplaced on the open switches with a flag attached to the bar. The bar wasto be a warning to all employees that all switches upon which it restedwere not to be closed. Respondent believed, and holds firmly to itsbelief, that its Flag and Tag Rule would in all instances act as apositive means of preventing the unauthorized closing of \”flagged\” mainpower switches or valves, and that flags, once placed on a main powerswitch or valve, would not be removed by persons other than theindividual who had initially affixed the flag to the open switch, andthus the power switch was considered \”locked out\” (Tr. 1198, 1402, 1403,1663, 1725).The procedure ostensibly established by Respondent in flagging a mainpower switch required the employee who was to perform the repairs orinspection to locate an electrician who then would open a locked door tothe room where the electrical main power switches were located (referredto as control room); the electrician would enter the control room withthe employee and open the appropriate power switches as desired by theemployee, thereby disrupting the flow of power to those components ofthe BOF desired immobilized. Once the electrician had opened the neededpower switches, the employee would place his flag and tag on the openedswitch (Tr. 122). The number of individual flags and tags placed on apower switch could vary with the number of employees working at aparticular location. Each employee working in the repair area who wouldbe susceptible to injury from movement of any component of the BOF wasrequired to place his flag on the open switch. [[2\/]] Pursuant to thisprocedure, electrical switches were not to be closed until all flagswere removed.Removal of the flags was done in a fashion similar to that followed whenflags were placed on electrical switches. The employee who had placedthe flag on the switch was the only person authorized to remove hisparticular flag. Upon removal of all flags the electrician would closethe switch thereby restoring the flow of power to the equipment.As mentioned, the switches which control power to the motors operatingthe basic components of the BOF were located in various control roomsgenerally situated distant from the work area (Tr. 791). It had been thepolicy of Respondent that only electricians would be allowed to open thelocked doors to the control rooms and manipulate the switches (Tr. 116,148, 459, Ex. C-9, C-10). This was an adjunct to the security of flagsplaced on power switches. At times, however, the doors to the controlroom were not kept closed and locked but were left unlocked and open.This occurred with regular frequency during the summer months when theday’s high temperatures combined with the heat generated by theelectrical equipment, making it necessary to keep the doors to the roomsopen as a means of obtaining additional cooling ventilation to the room.This was done in an attempt to lower the high temperatures so as toavoid damage to the equipment (Tr. 116, 118, 751, 752). This, however,allowed for unauthorized individuals to enter the electrical controlrooms thereby diminishing the security of the flags placed on theswitches (Tr. 116, 118, 751, 752).The basic flag in use at Respondent’s Burns Harbor Plant consisted of apiece of blue cloth attached to a tag by way of a rubber or leatherband, (hence the name \”Flag and Tag Rule\”). The tag containedinformation identifying the employee to whom the flag belonged (Exs.R-4, 2nd page, R-21, C-9, C-10). The stated purpose of the Flag and TagRule is \”to protect personnel from injury\” by serving as a \”warning toall other employees not to operate the machine unit . . . whenever saidemployee is in danger of injury due to the nature of the job he isdoing\” (Exs. R-4, R-5, R-6).Whether the flag and tag rule operated as an adequate means ofprotecting employees from the hazards associated with inadvertentapplication of power to equipment under repair or inspection (thusallowing equipment to cycle or move while employees were working onsame), became a long term continuous virulent controversy betweenRespondent and Respondent’s employees. This manifested itself in formaland informal grievances being filed by employees working at the BOF’s(Ex. C-4, 20-26, 28, 29, 32, 33, 34, 35, 36, 37).The Respondent has continuously maintained that its Flag and Tag Rulewas a sufficient means to prevent unexpected or inadvertent applicationof power to the equipment or machinery during periods when employeeswere making repairs. Respondent considered its flagging rule equivalentto a physical lockout which did not incorporate into its meaning therequired use of a padlock, notwithstanding the fact that its rule wasentitled \”Lockout, Flag and Tag Rule\” (Tr. 1236, 1402, 1403, 1663, 1725,Ex. C-5-a). The Respondent considered its Flag and Tag Rule a genericapproach to positively insuring the interruption of power to equipmentunder repair and was accordingly inclusive of the term \”locked\”. Therule was considered by Respondent to have its own generic flexibilityincorporating the concept of being \”locked\” without the need of apadlock. According to Respondent, the utilization of a flag and tag onan open switch obviated the need for a padlock or any other device thatcould physically prevent the disconnected power switch from being movedto the engaged position (Tr. 1236, 1402, 1403, 1663, 1725).The employees, on the other hand, believed that the Flag and Tag Rulewas an unreliable means of preventing the inadvertent application ofpower to equipment since the flag could be easily removed by someoneother than the person who initially placed the flag on the openedelectrical power switch (or closed valve), allowing for the closing ofthe electrical power switch or opening of a pneumatic or hydraulicvalve. This belief of employees developed over a period of time afternumerous instances of employees being subjected to inadvertent start-upof equipment or the unexpected restoration of power to the equipmentunder repair. These occurrences were directly attributed to theunauthorized removal of flags from main power switches by persons otherthan those who had placed the flags on the switch. Additionally, therewere continued and numerous instances of the terms of the flag rule notbeing followed.The incidents involving violations of Respondent’s Flag and Tag Ruleresulted in a loss of confidence by employees in the ability of the ruleto protect them from the hazards associated with the unexpected andinadvertent application of power to machinery and equipment underrepair. These incidents resulted in the filing of numerous formal andinformal grievances by the employees with Respondent (Exs. C-19-29, 32,33, 34, 37). This situation further resulted in the filing of a safetycomplaint by one of Respondent’s employees with the Complainant allegingthe presence of a hazard to employees working at Number 3 BOF by reasonof the absence of an adequate lockout system to prevent the unexpectedapplication of power to equipment under inspection or repair (Ex. C-4,Tr. 41-48). A safety inspection of Respondent’s work practice involvingthe Flag Rule was made by Complainant as a result of the employeecomplaint; this gave rise to the instant contested Citation._FINDINGS OF FACT AND CONCLUSIONS OF LAW __ALLEGED VIOLATION OF SECTION 5(a)(1) OF THE ACT_(a) _Elements and proof in a general duty case under current case law _Section 5(a)(1) of the Act requires of an employer that he \”furnish toeach of his employees employment and a place of employment which arefree from recognized hazards that are causing or are likely to causedeath or serious physical harm to his employees. Commission rulingsconcerning the Secretary’s burden in establishing the existence of a5(a)(1) violation, hold that there must be a showing that the employerfailed to render its workplace \”free\” of a hazard, that the hazard was\”recognized\” and that the hazard was causing or likely to cause death orserious physical harm to its employees._Brown and Root, Inc., _1980 CCHOSHD para. 24,853. With respect to recognition of the hazard, theCommission rulings place upon the Secretary the burden to show that themanner in which an employer went about the activity criticized in theCitation was known by it to be hazardous or was generally recognized assuch by the industry, or was reasonably foreseeable._Pratt & Whitney,_1980 CCH OSHD para. 24,447; _SSC Corp.,_ 1976-77 OSHD para. 20,814.The Commission has further pointed out that it is upon the Secretary toshow that there were feasible steps the employer could have taken toavoid the Citation — in other words it is the Secretary who mustestablish the feasibility of its abatement charge within its Citation._Brown and Root, Inc., supra._ The courts have adopted the Commission’sviews as to what proof the Secretary must establish in order to sustainits charge that an employer violated Section 5(a)(1) of the Act._Whirlpool Corp. v. OSHRC, _645 F. 2d 1096 (D.C. Cir. 1981); _Pratt andWhitney Aircraft _v. _Secretary of Labor,_ 649 F. 2d 96 (2nd Cir. 1981);_Usery _v. _Marquette Cement Manufacturing Co.,_ 568 F. 2d 902 (2nd Cir.1977); _National Reality and Construction Co._ v._OSHRC,_ 489 F. 2d 1257(D.C. Cir. 1973).Viewing the instant record, I find that the credible evidence in thiscase, by an overwhelming margin, has established that the Secretary hasmet his burden of proof in establishing that a violation of Section5(a)(1) of the Act existed at Respondent’s workplace, as that burden ofproof has been articulated by both the Review Commission and reviewingcourts.(b) _Application of the Decision and Affirmed Citation_In the instant case the Complainant has charged the Respondent withviolating Section 5(a)(1) of the Act by allowing employees to work onequipment under repair or inspection without having in place a positivecontrol of the sources of power to such equipment to prevent unexpectedor unanticipated start-up of the equipment during the repair orinspection activities. The Citation charged that only through use of asystem whereby employees use personal padlocks, or equivalent devices,to lock out power switches could the dangerous hazards associated withthe unexpected application of power be eliminated. The Citation chargedRespondent’s \”Flag and Tag Rule\” as being ineffective in the preventionof safety hazards, also charging Respondent with failing to implement oruse an effective lockout procedure when making repairs or adjustments toits lance port seals, or other equipment, at its Number 3 basic oxygenfurnace (BOF). The Respondent answers the Citation denying that theemployees did not have a positive lockout procedure in place, defendingand forwarding its \”Flag and Tag Rule\” as a feasible method of lockingout power sources to equipment which may be under repair. Respondentfurther maintained that use of \”padlocks\” as a means of locking outpower switches was both technically and economically unfeasible, andpresented other safety hazards.While the Citation refers only to the Number 3 BOF, it is clear that theruling in this case will directly apply to Respondent’s other basicoxygen furnaces at its work place (as well as impacting throughout itsplant) where employees, while making repairs or inspections toequipment, are subjected to hazards of serious injury or death resultingfrom unexpected application of power to the equipment under repair orinspection. This seems the only logical approach in this case since thefacts have established that all three BOF work areas were substantiallyidentical, were contiguous to one another, were operated as an integraloperation, were worked on by the same employees, were all controlledfrom one operating station (pulpit), and had main power control switchesfor all three BOF’s located in the same control rooms (Tr. 20-40, 118,130, 743, 1147-1155, 1341-1343, Ex. C-31). Any other application of thisDecision (and the affirmed Citation) would render the same work areasoccupied by the same employees and employee groups with varying,conflicting lockout rules. This unquestionably would have the leastdesirable effect of uncertainty in providing for the safety of employeesin all three BOF operations. Finally, the instances where the \”Flag andTag Rule\” failed to protect employees from the inadvertent start-up ofequipment exposing employees to the dangers of death or serious physicalharm occurred not only in all three BOF work areas, but throughout theRespondent’s workplace at its Burns Harbor Plant (Tr. 561, 565, 573-578,Exs. C-20, C-21, C-22, C-24, C-25, C- 26, C-27, C-30, C-31, C-32, C-34,C-37, C-44, C-47, Ex. R-1, R-11, R-14).(c)_The Workplace Environs and Operation of the Flag and Tag Rule_It is important to understand the massiveness of the equipment which isworked on by the employees and how that relates to the enormity of thehazard created by inadvertent application of power to the equipment andpossible cycling of equipment while employees are in close and intimateproximity to it. The work area, which is the subject of the Citation, isat Respondent’s Basic Oxygen Furnace (BOF) of which it has three (Tr.1150, Ex. C-1). The basic oxygen steelmaking process is differentiatedfrom other steel production processes through introduction of oxygeninto the metal melting furnace through a large pipe structure called alance. The lance is approximately 70 feet long and 10 inches in diameterand rides on an I-beam type carriage. During the melting process thelance is lowered into the furnace and oxygen is blown into the moltensteel bath increasing the temperature of the molten metal and removingimpurities from the molten metal. A heavy metal seal clamps around thelance holding it in place during its \”blowing\” process (Tr. 1151-1165).Movement of the lance, as well as a tilting movement of the furnace, iscontrolled by a \”pulpit operator\” located in a control room (\”pulpit\”)approximately 200-250 feet from the Number 3 furnace; all three BOF’sare controlled by the one operator at the \”pulpit\” (Tr. 20, 88). Thepulpit operator has no direct visual contact with the lance or lanceport seal work area but observes this area on a black and white TVmonitor. This is an aid to prevent the operator from swinging the lanceinto the work area or tilting the furnace while employees may be workingthere (Tr. 34, 35, 73, 74, 1151-1155). Additionally, the operator has aconsole that contains lights indicating whether power is going to themotors which move and operate the lance and furnace (Tr. 38). Ifemployees are working in the area the lance must be in the parkedposition (Tr. 40).There are two lances at each BOF; one is in the standby position and onein the ready position. When not in use, the lance which is in the readyposition is kept in the \”park\” position which is about 10 feet away fromthe mouth of the furnace (Tr. 1151). At the beginning of the metalmelting process (\”a heat\”), the lance traverses or \”slews\” from theparked position to the \”ready\” position, a point directly over the mouthof the furnace, the bottom of the lance being approximately 4-5 feetabove the opening (Tr. 1151). It is then lowered into the \”in hood\”position at which point the lance is inside the lance port seal but afew feet above the mouth of the furnace. When the lance is lowered to apoint directly above the molten metal bath, oxygen is then blown intothe molten metal. After the melting process is completed, the lance israised from the furnace, traversing to the parked position. The furnaceis then tilted so as to allow for the pouring of the molten metal andpouring away of slag. The furnace is then turned in the upright position.By reason of the tremendous heat associated with metal melting, and thedynamics in the movement of the massive equipment making up the BOF, thecomponents of the BOF require continuous and frequent repairs (Tr. 103,104, Ex. C-7). These repairs are referred to as \”minor repairs\”, ofteninvolving the lance and lance port seals (Ex. C-7). In providing for thesafety of Respondent’s employees who must perform these repairs to thislarge equipment, power to the motors which move the lance and which moveor tilt the furnace is disrupted at a main control point by breaking themain power circuits leading from the power source to the motors. Thisdisruption in the flow of power is done at electrical control roomswhere are located large knife-edge electrical switches. These switchesonce placed in an open position immobilize the equipment and keep itfrom moving while employees are in the repair work area. The same istrue with electrically powered teeming cars that carry molten metal orslag from the furnace. These cars often need repair work done to them.The motors that drive these cars also have their main control switchesat the electrical control rooms. The lance port seals are operated bycompressed air, and during \”minor repairs\” are secured by closing off anair valve located near the seals at the side of the BOF.The hazard associated with inadvertent or unexpected start-up ormovement of BOF equipment to which employees making repairs orinspections are exposed involve their being struck or crushed by themoving equipment, or being knocked from the work platform to the rublepit below, or being knocked into the furnace itself. Death or seriousphysical injury is likely to occur from any such encounter (Tr. 42, 46,52, 83, 126-128, 171, 230-234, 600, 601, 706, 753-757, 872, 873, 883,943, 952, 995-999, 1354, Exs. C-22, R-62). An additional hazard developsfrom falling pieces of hardened metal globs from off the lance when thelance is moved. These metal pieces form on the lance during the meltingprocess. These hardened metal globs, or \”skull\” as they are called,readily fell from the lance into the work area when moved. Employeesworking in the swing radius of the lance could receive serious physicalinjury if the lance were suddenly moved into the work area causing the\”skull\” to fall from the lance onto the employees (Tr. 40, 126-128).Lastly, the furnace is generally placed in an upside down position whenthe lance port seals are undergoing repair. In the case of inadvertentor unexpected rotation of the furnace, smoke, fumes and heat could beomitted from the mouth of the furnace into the work area and could causeserious burns to employees working there (Tr. 127-28).To prevent the situation where equipment under repair could beinadvertently activated, Respondent established its Flag and Tag Rule.This rule, in the main, required that main power switches controllingpower to machinery under repair or inspection be placed in an openposition [[3\/]] and a flag and tag placed on the open switch by theindividual who is to make the repairs. The tag would carry the name,department symbol or code of the man who placed the flag on the openswitch. While Respondent’s work rule mentions the use of a lock toaccomplish a \”lockout\”, Respondent specifically prohibited the use oflocks. [[4\/]] Cardinal to success of the rule’s capability to protectworkers from the hazards of unanticipated or inadvertent start-up ofequipment under repair, as enforced by Respondent, was the prohibitionof removal of the flag or tag from an open power switch by an employeeother than the employee who placed it on the switch, except undercertain controlled conditions (Exs. C-5-a, C-6-a).(d) _The Parties Positions_While Respondent’s own rule refers to the use of a \”lock\”, Respondentthroughout these proceedings maintained that its rule did not intend forthat word to mean a padlock and that the use of a flag and tag is ageneric proposition that incorporates the concept of a lock.Respondent’s view is that the flag and tag is comparable, equal, andinclusive of the act of using a padlock in locking main power switchesin an open position (Tr. 1236, 1402, 1403, 1663, 1725).The Complainant maintained that Respondent’s failure to provide a workpractice wherein employees who were repairing or inspecting machinerywould lock out the power switches with a personal padlock, to which onlythe employee using same had the key, caused the work area to behazardous since the flag could be easily removed by other employees, andindeed was done so by both hourly employees as well as Respondent’s ownsupervisors. This allowed for power to be restored to the equipment,with the resultant hazard of unanticipated start-up, while thoseemployees who had placed the flags on the switches were relying uponthem for safety in their work. The Complainant further maintained thatthe hazard was easily recognized by Respondent at its workplace byreason of the many incidents arising from Respondent’s Flag and Tag Rulebeing disregarded or violated. Complainant asserts that the hazard wasnot only recognizable, but all but ignored since it was Respondent’s ownsupervisors who in many instances allowed or participated in the removalof employees’ flags from open power switches without the knowledge orconsent of the affected employee.The Complainant has concluded that not only was the flag and tag systemforwarded by Respondent an inherently ineffective and recognized unsafeprocedure for protecting employees engaged in repair or inspection ofmachinery from the unexpected application of power to the equipment butin and of itself created a hazard if employees were required to work onmachinery whose main power switches were merely flagged in an openposition (Tr. 237, 238, 269, 271, 272, 273, 341, 342).(e) _Evaluation of Expert Testimony_As a prelude to resolving the contested factual issues, opinion evidenceof the expert witness, together with the observations of the layexperts, will be considered first. I find the conclusions andobservations of the Complainant’s expert witnesses that with the use ofpadlocks for locking power switches in the open position there would belittle to no possibility of unauthorized persons causing main powerswitches to be closed, and power unexpectedly restored to equipmentbeing repaired, just too persuasive and logical to be ignored. Theconclusions and observations of these experts resulted from many yearsof experience with the use of padlocks, as well as with the use of theflag and tag system. Their combined extensive experience with use of thepadlock for positively locking out power switches clearly establishedthat padlocks were not only effective in meeting the hazards involvedherein but were completely compatible with the operation of virtuallyany type machinery, including that involved with electrical equipmentand their components (Tr. 238, 239, 240, 253, 255, 257, 283, 284, 287,288, 337, 342, 343, 344, 362). I find Complainant’s experts’ conclusionsconcerning the use of a lock, as opposed to a flag and tag, as apositive means of protecting employees from the inadvertent start-up ofequipment singularly persuasive.[[5\/]] I further find that the testimonyof Complainant’s expert witnesses established that use of padlocks tomeet the hazards of inadvertent start-up of equipment under repair was awell entrenched procedure in industry in general, and the steel industryin particular. It simply cannot be said that the inherent inability of aflag and tag system to effectively protect employees from hazardssimilar to that involved in this case was not recognized in the steelmaking industry (Tr. 238, 239, 241-252, 335-340, 343, 399, 400, 401,405, 878, 879, 883, 884). Thus in so far as it may need be establishedthat there was industry recognition of the cited hazard, Complainant, inthis regard, has borne his burden. _National Reality and ConstructionCompany_ v. _OSHRC_, _supra;_ _S. C. Corp,_ 1976-77 CCH OSHD para. 20,814.Finally, it should be noted that the opinions, conclusions andobservations reached by Complainant’s expert and lay witnesses that ahazard existed at the worksite by reason of the use of flags and tags asa form of \”lockout\” was well substantiated by the repeated predictedshortcomings within the Flag and Tag Rule; there were indeed manyinstances of capricious removal of flags from open power switcheswithout the knowledge or authority of the person who had placed theflags there in the first place, as will be more fully described below.(f) _The Flag and Tag Rule’s Failure to Operate as an Effective SafetyRule_This record is ladened with incident after incident where flags placedon open switches, under Respondent’s Flag and Tag Rule, by employees whowere to perform inspection or repair work were removed from the switcheswithout the knowledge of the employees who had placed them there in thefirst place. These continuous recurring incidents subjected employees tothe dangers and hazards of unexpected start-up of equipment undergoingrepair, and was of significant concern to the employees. This concernmanifested itself in the filing of grievances and the threat of a jobwalkoff.The cited hazard in this case was well established by the Complainantwith the testimony of employees who experienced their flags and tagsbeing removed from flagged open main power switches of equipmentundergoing repairs. These incidents, while dating prior to 1971 [[6\/]]persisted nearly to the date of trial herein. The following describesthe type of incidents which demonstrates the inherent shortcomings of aflag rule.In April of 1971, the flags of employees working on a transfer car wereremoved by a laborer under the direction of the sub-foreman placingthose employees working on the transfer car into hazardous situation byreason of the possibility of inadvertent and unexpected movement of theequipment (Tr. 577, 581, 589, 631, 639, 640, Ex. C-29). In late 1973,employees were working on coupling of a teeming car when a supervisorhad an electrician remove their flags without their knowledge. Theswitches were energized causing the car to move and the coupling whichthey were working on to rotate. The employees narrowly missed sustainingsevere injury (Tr. 600, 601, 753-756, Ex. C-33, pages 8, 9).In January, 1974, one of the most serious incidents involving the Flagand Tag Rule occurred tragically illustrating the extreme hazardsemployees can be exposed to in the event of a failure in the integrityof the rule. A millwright in the BOF Mechanical Department lost his armand leg when he was run over by an ingot car on which he was working.The ingot car was put into motion when a string of cars from anothertrack was moved through an unlocked and unflagged rail switch onto thetrack where the employee was working (Tr. 565- 70, Ex. C-27). InRespondent’s accident investigation report, and at the hearing, it wasshown, that only strict application of the Flag and Tag Rule would haveprevented the accident. The flag rule was violated by reason of thesupervisor’s decision to use a safety watchman on the track insteadlocking and flagging the actual switch. This decision was made in orderto \”expedite\” the job (Tr. 1408, Ex. C-27).Sometime in the first half of 1975, an employee who was engaged inlubricating equipment, and was in close proximity to said equipment hadhis flag removed from a flagged out power switch; this subjected him toinjury by reason of the possible start-up of the equipment (Tr. 528).During that same period two employees working on a teeming car had theirflags pulled off a main power switch allowing for the restoration ofpower to the teeming car. This was done by their foreman and placed thetwo employees in danger (Tr. 529, 530).In December, 1977, a foreman attempted to have one employee flag outpower switches for other employees who were to later work on BOFequipment controlled by said switches. This became the subject of agrievance (Tr. 585, 688, Ex. C-32). In February, 1979, a foreman removedan employee’s flag from the Number 2 BOF tilt controls while theemployee was working on the furnace (Ex. C-24). In August, 1979, alaborer removed flags on power switches placed there by employees whowere repairing related equipment. This subjected the individuals to thepossibility of inadvertent start-up of the equipment. The situation wasaverted by a safety watchman catching the infraction and having theflags restored to the power switches (Tr. 492, Ex. C-23).In December, 1979, an employee working on a teeming car, who had placeda heavy metal slab across the tracks to prevent movement of a secondteeming car into the work area, had the slab removed by order ofmanagement without his knowledge. This subjected the employee to thehazard of the second teeming car rolling into the work area causinginjury to the individual (Tr. 615-617, 706-709, 713), 714 Ex. C-37.). Aslate as March, 1980, a foreman removed the flag from a power switch ofan employee performing repairs on equipment, (the foreman admitting thatthis was regularly done). This incident became the subject of agrievance (Tr. 479, Ex. C-20).All these above described incidents seemed representative of theexperiences in the work place (Tr. 75, 79, 461, 473, 561, 749, 752).They are found to be a clear indication of a flag’s inability to act asa positive protective lockout of power switches. These incidents amplydemonstrate how flags used to prevent the reactivation of power can beeasily removed by persons other than the individual who placed the flagson the open switches, thus leaving the employee unknowingly exposed tothe dangers of injury from unexpected movement or start-up of themachinery under repair. This situation was exacerbated the fact that onmany occasions the doors to the control rooms where power switches arelocated are left unlocked and open (Tr. 116, 118, 751, 752).While Respondent attributes these incidents to improper Flag Ruleprocedures or to communication problems (Tr. 1173, 1175, 1222,1379-1382, 1410), Respondent misses the mark in failing to recognizethat the incidents are not deviations in the effectiveness of the FlagRule but examples of the inherent fatal flaw in considering the flag apositive means to insure that equipment under repair will not beinadvertently started. This conclusion rings especially true since onmany occasions it was Respondent’s own supervisors who made a consciousdeliberate decision not to comply with the explicit terms of the flag rule.Considering the realities of the work place, I simply do not find thetestimony of Respondent’s witnesses who equated the use of a flag to apadlock as a means of \”locking out\” power switches to have any basis inreason or fact. In light of the evidence making the record in this casesuch a conclusion is found not only to be unrealistic, but has caused toexist at subject work place a hazard to those employees required toperform repair work on equipment seemingly protected by flags.Respondent’s Flag and Tag Rule was further shown to be a failure as alockout safety rule by reason of the extent of deviations fromcompliance with the rule itself. This record contains significantevidence which shows that the Flag and Tag Rule, because of itsinability and its ineffectiveness to positively protect employeesengaged in repair work, had never won acceptance from employees as aneffective means of protection from subject hazard; nor would it ever.There apparently developed a derisive attitude by employees, bothsupervisors and hourly employees, towards compliance with the Flag andTag Rule. This resulted in significant instances of noncompliance withthe rule by both supervisors and hourly employees, but mainly bysupervisors.[[7\/]] This manifested itself in disenchantment with therule by hourly employees and disregard of the rule by supervisors, allof which predictably further degraded the effectiveness of the rule. Therecord in this case contains significant examples of the many instanceswhere compliance with the Flag and Tag Rule was simply ignored. Indeed,one of these instances resulted in the filing of a safety complaint withthe Complainant and is demonstrative of this situation. The safetycomplaint was filed by the Pulpit Operator after he had experiencedseveral incidents involving employees narrowly escaping from injury whenhe had activated the lance or other BOF equipment this complaint gaverise to this action (Tr. 71, 75, 77, 80).The first of these incidents, occurring several months prior to thefiling of the OSHA complaint, came to the Pulpit Operator’s attentionwhen an employee approached him claiming that the employee, whileworking on the lance port seals, had narrowly missed being killed whenthe lance was slewed by the Pulpit Operator in on him (Tr. 46-47). Theemployee had been instructed by his foreman to quickly adjustments onthe lance port seal without flagging out the perform necessary breakers(Tr. 47, 170-171). A second similar incident occurred on February 26,1979, which prompted the filing of the safety complaint (Tr. 41-48, Ex.C-4). The Pulpit Operator was again told to slew the lance, not knowingemployees were working on the lance port seal (Tr. 43). A foremanworking at the lance port seal did not cause to have the equipmentflagged out even though employees were ordered to work there. Accordingto Respondent’s supervisors the foreman assumed that anotherindividual’s flag was on the lance’s main power breaker (Tr. 1229-39,1245-49). Had an effective lockout utilizing padlocks been in placethese incidents would not have occurred.Perhaps the most telling of the Flag and Tag Rule’s _inherent_ inabilityto be considered an effective and convincing means of protectingemployees from these hazards discussed in this case was the continuousnon-compliance with the rule by Respondent’s own supervisors [[8\/]] (Tr.561, 578, 593 600, 621, 639, Exs. C-28, 32, 688, 699,700, 824, 857,863). This situation had three distinct aspects to it. First, it showedin and of itself the inherent weaknesses ingrained within the flag rule,and the rule’s perpetuation of the hazard to which employees, who hadplaced reliance upon said flag rule for protection, were exposed.Second, it had the effect of causing employees to lose faith in the flagrule as a means of protection and to insist that padlocks be usedinstead of flags to secure the open power switches (Tr. 133, 136, 140,168, 461-469, 473, 561, 699, 749, 750, 772). Third, the lack ofconfidence of the employees in the rule manifested itself in diminishedcompliance with the rule, further degrading it as a legitimate means ofhazard prevention. This last aspect is considered a reasonablyforeseeable event since human nature does not respond or adhere touseless acts, specifically those that purport to be safety related whenin fact they are not. Respondent’s flag rule was such a rule.(g) _Respondent broadly argues that the hazard to Which Employees WereExposed_Respondent broadly argues that the hazard alleged in the Citiation wasnot recognizable and that this, accordingly, fatally flawed the Citation.Respondent’s arguments in all its parts is singularly unpersuasive. TheCommission, as well as the Courts, has held that the knowledge (orrecognition) requirement within section 5(a)(1) of the Act can besatisfied by proving that the employer had actual knowledge that acondition was hazardous or by showing that the standard of knowledge inthe relevant industry recognized the condition to be hazardous.[[9\/]]_National Reality Co. supra;_ _Brennan _v. _Vy Lactose Laboratories,Inc._, 494 F. 2d 460 (8th Cir. 1974); _Brown & Root Inc.,_ 1980 _supra._In this case, the Complainant clearly showed that there was actualrecognition of the hazard by Respondent and thus has met his burden ofproof in this regard. Respondent’s argument in defense of the Citationis rejected.The employees, continually, over a prolonged period, and up to recentdate voiced their concern about the effectiveness of the Flag and TagRule as a means or protecting them from the hazards of inadvertentstart-up of equipment under repair. This was done directly on the job tosupervisors, by way of safety complaints, and through the job grievanceprocedure. In 1976, employees refused to rely on the Flag and Tag Ruleand began using locks by reason of the number of violations of the Flagand Tag Rule, many of which were by supervisors who simply disregardedthe rule. After a confrontation with Respondent on this matter theemployees agreed that use of the locks would be for a limited period,allowing to Respondent that time necessary to rehabilitate the rule sothat it could be an effective means of protection. Though each time theemployees were willing to use locks for a limited duration, so thatRespondent could institute better training aimed at upgrading theeffectiveness of the rule, it sorely appeared that rehabilitation of theFlag and Tag Rule as a means of avoiding the hazards associated withinadvertent startup was just not possible (Tr. 749, 788, 827, 853-855, 861).Two separate grievance hearings held under the arbitration provisions ofthe Collective Bargaining Agreement were held concerning the reliabilityof the Flag and Tag Rule as a means of protecting employees and theemployees’ right to use padlocks supplied by Respondent. Thearbitrations dealt with then recent breaches of the Flag and Tag Rule(Ex. C- 19, R-1). It was during the second grievance procedure that itbecame clear to Respondent’s supervisors that the employees had totallylost faith in the Flag and Tag Rule and would not work without locksbeing provided to them for use in locking power switches in the openposition. Respondent’s supervisors recognized the fact that employeeswould not return to work without the protections which could only beafforded through the use of padlocks (Tr. 1469). At that time it washoped by Respondent that with enhanced training the employees would cometo have restored faith in the effectiveness of the Flag and Tag Rule,and not insist on the use of company provided locks; Respondent’s hopesnever materialized and the event never came about (Tr. 827, 1469-1472,1475). The significance of this evidence in determining that arecognized hazard existed at the workplace, as charged in the Citation,simply cannot be ignored.I need not rehash that evidence showing time after time an employee, whohad placed a flag on a main power switch relying upon that flag forprotection from the subject hazard, having the flag removed by a secondemployee, who all too often was one of Respondent’s own supervisors,thereby placing the employee’s safety in jeopardy — all known toRespondent. Further, I will not discuss those cases where employees, byreason of a failure in the Flag and Tag Rule, were experiencing closecalls due to the reactivation of power and the inadvertent start-up ofequipment which was under repair and initially appropriately flagged out– all known to Respondent. Finally it is hard to imagine there was notrecognition of the hazard when Respondent’s own safety work rulesspecifically provided for the use of padlocks to accomplish proper\”locking out\” of power switches (Ex. C-5, C-6).[[10\/]](h) _Feasibility_While I find Complainant has shown that a recognized hazard existed atRespondent’s worksite by continuing the use of hanging flags to effect a\”lockout\” of power switches to equipment under repair and inspection,and that a system of using padlocks would eliminate this hazard,discussion of the feasibility in use of the padlock is necessary sinceunder appropriate Commission and court law it is the Secretary’s burdento establish this fact. _Whirlpool_ v. OSHRC and MARSHALL_supra._;_National Realty,_ 489 F. 2d at 1268. Additionally, this issue wasraised by Respondent as part of its defense to the Citation.The credible evidence introduced in this matter established that the useof padlocks to effect a \”lockout\” of power switches to equipment underrepair was not only feasible but a reasonable method to address thehazard associated with unexpected or inadvertent start-up of equipment.The singular ease a padlock can be issued to employees, the ease thepadlock can be used by employees, and the ease that a lock can beaffixed to power switch components of existing equipment at Respondent’splant belies any real issue that a well organized program would beanything other than a feasible method to effect lockout of power sourcesto equipment under repair. That padlocks are currently successfully usedat Respondent’s worksite (not to mention other similarly situatedsteelmaking facilities) is proof enough that padlocks, as a means toeffect lockouts, are completely compatible devices for use onRespondent’s machinery and equipment, and are completely compatible withthe manufacturing processes carried on by Respondent (Tr. 132, 136, 153,155, 156, 235, 253-257, 258, 273, 294, 295, 303, 335, 338, 342, 343,362, 391, 396, 397, 460, 461, 469, 472, 473, 509, 513, 535, 561, 618,619, 649, 711, 712, 744-749, 788, 794, 798, 827, 830, 838, 876-878, 883,Exs. C-9, C-10, C-12, C-13, C-14, C-15, C-16, C-17, C-18, C-51, C-53).Respondent, in attacking the feasibility of use of padlocks, raisesthree separate arguments. First, Respondent argues that since some ofits equipment was incapable of being padlocked, repair work would attimes, by necessity, have to be done under a flag and tag rule and thatthis amounted to a \”bastardized\” safety rule rendering the use ofpadlocks ineffective. Respondent further argues that using padlocks onits electrical equipment would be a \”jury rigged\” proposition and byreason of the large numbers of padlocks which might be needed couldcause a chain of locks capable of becoming entangled in the electricalleads resulting in an electrical hazard. Lastly Respondent argues thatthe use of padlocks would be costly requiring a significant outlay of money.Respondent’s argument that the operation of two systems (i.e. flag andtag, and padlock) would render uncertain the enforcement of either isspecious at best. Most, if not all, electrical power switching equipmentcontrolling power to production equipment is capable of being padlocked,or locked with the equivalent of a padlock [[11\/]] (Tr. 118, 130, 131,132, 153, 155, 156, 446, 447, 448, 459, 647, 648). As such, the adventof a two system program just does not appear probable to any significantdegree to adversely impact upon the effectiveness of using padlocks. Inany event there is no hiding from the fact that Respondent’s Flag andTag Rule was not working effectively and replacement of it in any degreeis a constructive step toward eliminating or reducing hazards in theworkplace.With respect to Respondent’s argument concerning the possibility oflocks causing shorts or becoming enmeshed in the energized leads of theswitching equipment, I find no persuasive evidence that such a hazardexisted to any appreciable degree or that such a hazard, if it didexist, could not be corrected or prevented.The most credible evidence seemed to show that the number of padlockswhich would be used at any one time would be manageable. This evidencecame through the testimony of employees who actually worked with the BOFequipment, such testimony being straightforward, truthful and compellingin the ordinary common sense of things (Tr. 140, 362, 514, 515, 647,648, 649, 650, 794, 798, 826, 835, 956-962). There is little credibleevidence in this record which would indicate that use of padlocks wouldresult in huge cumbersome chains of locks hanging from switches, asportrayed by Respondent. Additionally, with a well supervised andeffectively enforced optional \”group lock system\” (as currently providedin Respondent’s General Safety Rules for Employees) the number ofindividual locks used could be significantly controlled (Tr. 258,287-289, 344, 514, 515, 516, 519, 533, 699, 743, 746, 796-798, 799, 904-906, 977, 1022, 1017, 1018, 1020, Ex. C-5, Section VII – paragraph 2).Moreover, since under Respondent’s own lockout rule (when it chooses tofollow that rule) only skilled electricians are allowed to manipulatethe electrical power switches an electrician could safely place thepadlock on the power switch as desired by the employee. The employeecould observe from a safe vantage point that his lock was indeed used tolock the appropriate power switch in an open position without incurringany risk of exposure to electrical hazards (Tr. 122, 956-962,1763-1767). Finally, through the use of \”lock expanders\” large numbersof locks could be safely accommodated when attached to open powerswitches, without the postulated unwieldy chain of locks (Tr. 282, 283,1321, 1322, Ex. C-12, figure 21-14).However, assuming the occurrence of a possible electrical hazard whichcould not be satisfactorily overcome by use alone of the above discussedwork practices or equipment, Complainant demonstrated that there stillexisted other well recognized and readily available means to deal withor effectively eliminate the hazard. These means could either be used bythemselves or in conjunction with those above mentioned, and includedelectrical insulation of locks, use of non-conductive locks, and use ofrubber shielding which could easily be hung from the switches toseparate the locks from the energized leads (Tr. 283-285, 1319, 1320,1333, 1334, 1337).(i) _Economic Feasibility_As to the issue of costs and economic feasibility raised by Respondent,first, I see no reason for Respondent to replace any of its electricalequipment, which would be extraordinarily expensive. Its equipmentcurrently can accommodate use of padlocks as a lockout device. Further,with use of any of the above discussed means, methods or procedures toprevent electrical hazards, no modification of the equipment would benecessary with employment of the personal padlock lockout system.Hydraulic or pneumatic valves can easily be locked with a chain andpadlock (Tr. 132, 136, 141, 153, 155, 156, 460, 461, 462, 469, 470, 538,618, 647, 648, 711, 749, 762, 795, 826, 829, 838, 1318, 1321, 1322,1472, 1473, Ex. C-9, C-10). Second, the costs associated with purchaseof a large number of padlocks appears insignificant in comparison to thebenefits received from a safer hazard-free workplace. Moreover, the costof locks pales thin in comparison to the magnitude of costs associatedwith ordinary repair and maintenance of the equipment at the BOF (Tr.258, 304-306, 362). Clearly, there exists in this case no legitimateeconomic bar to employment of a personal padlock system provided byRespondent to its employees.(j) _Possible Rehabilitation of Flag Rule Through Training_One last argument of Respondent needs to be considered, that beingRespondent’s perception that any failure in its Flag and Tag Rule’seffectiveness to prevent hazards arising from unexpected start-up couldbe adequately resolved through proper training and supervision.Respondent essentially forwards the proposition that it is not the flagand tag system that is at fault when there is a failure in the projectedprotections against inadvertent start-up, but that this is merely amatter of need for enhanced training, communications, or supervision. Ifind Respondent’s argument begs the basic question whether or notadherence to the Flag and Tag Rule, as opposed to use of a padlock toaccomplish the lockout, was itself the hazard. It cannot be denied thatall through Respondent’s prolonged training efforts (Tr. 1354,1459-1461, 1519-1523, Exs. R-5, R-6, R-15, R-16, R-17 R-19), there wasno reduction or elimination in the number and seriousness of incidentsinvolving the improper removal of one employee’s flag by anotheremployee (be he an hourly employee or supervisor), and that theseincidents subjected employees who had relied upon the protection of theflag to possible serious injury from unexpected start-up of equipmentunder repair.Considering the extensive record in this case, Respondent’s argument, inand of itself, can only lead to the inescapable conclusion that its Flagand Tag Rule has an inherent unremediable inability to adequately dealwith the recognized hazard it was designed to prevent. Respondent’sargument as a defense to the Citation must be rejected. _BSAF -Wyandotte Corporation,_ 1981 CCH OSHD para. 25,831.(k) _The Citation_Respondent has argued that the general duty clause was an inappropriateprovision of the Act for Complainant to use in citing the allegedviolation. I fail to see the logic of Respondent’s argument, since theCitation is clearly worded in terms of Section 5(a)(1) of the Act,unequivocably informs Respondent of the violative condition — acondition for which no current standard exists, and informs Respondenton how the hazard could feasibly be abated. _Whirlpool Corporation_ v._OSHRC,_ 645 F. 2d 1096 (D. C. Cir. 1981); _Whirlpool Corporation, _1979OSHD para. 23,552 (Review Commission). I find that the amended Citation,on its face, to be an appropriate means for the Complainant to cite theoffending condition. I do not find any authority in the cases cited byRespondent to hold otherwise.(1) _Conclusions_It has been made patently clear that maintenance of Respondent’s Flagand Tag Rule created a serious hazard to employees. The recurring andcontinuing deviations in compliance with Respondent’s Flag and Tag Rulepoints out both the rule’s inherent inability to protect employees fromthe hazards involved in this case, and the validity of Complainant’sposition that only through use of a personal padlock system can there beachieved a realistic positive means to lockout power switches thuseffectively disrupting power from reaching equipment worked on byemployees. Further, the record is completely devoid of any evidencewhatsoever which supports Respondent’s conclusion that the term\”lockout\” really means the use of a Flag and Tag and not the use of apadlock. A simple, but persuasive and compelling, truth exists in thiscase and that is that none of the events in which an employee removedfrom an open power switch the flag of another employee who was thenengaged in repair work, placing the latter employee in jeopardy ofinjury, would have occurred had there been in place a padlock, the keyto which was on the person who placed the padlock on the switch in thefirst instance.In summary, I find that the Complainant has shouldered his burden indemonstrating those elements establishing a violation of Section 5(a)(1)of the Act. BASF – _Wyandotte Corporation,_ _supra;_ _Brown and Root,Inc., supra; Whirlpool Corp._ v. _OSHRC, supra;_ _Pratt & WhitneyAircraft_ v. _Secretary of Labor,_ _supra;_ _Usery_ v. _Marquette CementManufacturing Co.,_ _supra_; _National Realty and Construction Co._ v._OSHRC_, _supra._ Ample evidence in this case established the existenceof a known and recognized serious hazard in the use of flags and tags byemployees attempting to accomplish a positive means of lockout for powersources to machines under repair or inspection. Ample proof exists inthis record showing that the use of padlocks would virtually eliminatethe possibility of unauthorized closing of main power switches which hadbeen properly locked open with a padlock. The evidence further showedthat personal padlocks, supplied by Respondent to employees, would becompatible with the operation and use of Respondent’s equipment at allits BOF areas, and was a feasible means to eliminate the hazard to whichemployees are no exposed. Accordingly, I find Complainant hasestablished that a violation of Section 5(a)(1) of the Act existed byreason of Respondent’s failure to have as a work practice the use ofpadlocks as a means of positively locking out power sources duringperiods when equipment was under repair or inspection._CHARACTERIZATION OF THE VIOLATION AS WILLFUL_The Complainant, by amendment,[[12\/]] charged in its Citation andComplaint that Respondent’s violation of Section 5(a)(1) of the Act waswillful in nature. I find sufficient and convincing evidence to sustainComplainant’s allegation that the violation of the general duty clauseby Respondent was willful in nature. That Respondent was fully aware ofthe hazard to its employees and was fully aware of the failures in itsown flag and tag rule to adequately cope with such hazard, simply cannotbe denied under any reasonable understanding of the evidence making therecord in this case. Indeed, it appears the vulnerability of employeesto injury under Respondent’s flag and tag work rule was all but ignoredby Respondent and its supervision.This case involves instance after instance of employees, whileperforming repair or inspection work on the BOF, being placed injeopardy of serious or mortal injury by reason of the easy andinappropriate removal of flags from power switches. What makes thismatter particularly egregious is the fact that in many instances it wasRespondent’s own supervisors who blatantly violated the Flag and TagRule or otherwise participated in having the flags removed from openmain power switches without the consent or knowledge of the employee whohad placed them there initially. This apparently was done in order togain quick restoration of power to the BOF equipment which in turnallowed Respondent to speedily place its BOF, that had been underrepair, back into production — all taking place regardless of thesafety consequences or considerations (Tr. 48, 473, 474, 593, 594, 857,858, 1199). In these acts there did not seem to be any real thought orregard given to the safety of employees working on the equipment, andwas in total contravention of the purpose of the flags as a device tosafely secure power switches.The record established that notwithstanding Respondent’s championing ofthe virtues of its Flag and Tag Rule, there was little regard byRespondent’s supervision in faithfully following the flag rule (Tr. 479,528, 529, 530, 565-570, 577, 581, 583, 589, 600, 601, 615-617, 639, 706,709, 713, 753, 756, 1408). It could be said that violations of the Flagand Tag Rule by Respondent’s supervisors, with its hazardous componentto employees, was done intentionally when it suited Respondent’spurposes. After all this record shows that no supervisor was everdisciplined in the slightest for disregarding the rule (Tr. 621, 1195,1264-1267, 1278, 1485, 1579-1583) — even a supervisor who had seriouslyviolated the rule at least twice, yet was still considered to have hadan unblemished record (Tr. 1313).There had been numerous grievances and safety complaints filed byemployees concerning both the surreptitious removal of employees’ flagsfrom power switches and the fact that the provisions of the Flag and TagRule was being ignored. Respondent’s only response to these grievancesand complaints was its relentless imposition of the flag rule until thatpoint when employees, in mortal fear of their safety, appeared ready towalk off the job unless something was done. Then, on a limited basis,and for the alleged purpose of attempting to obtain time to rehabilitateits rule so that some sort of faith could be restored to it, didRespondent allow select employees to use padlocks to positively lockoutpower sources. After a period of time, it should have been clear that itwas impossible for the employees to regain faith in the Flag and TagRule since those other employees who were not allowed to use locks, butrequired to rely on the flag rule, continued to experience their flagsbeing improperly removed from opened power switches. No such realizationcame to Respondent.Time and time again the inherent shortcoming in the Flag and Tag Rulewas brought to Respondent’s attention but Respondent acted indifferentlyto these incidents plainly showing a willingness to subject itsemployees to otherwise avoidable dangers and hazards. Respondent’s onlyanswer to the failures of its Flag and Tag Rule was its strident, butbaseless, fidelity to the belief that the rule presented the same degreeof positiveness that a padlock system would have in securing powerswitches. I find that ordinary reason would have dictated that thecontinual and reoccurring episodes involving the failures in theworkplace of Respondent’s flag rule would have brought to mind thevulnerability for easy removal of the flags from opened power switchesand the flag’s failure as a safety device. Accordingly, the onlyobjective conclusion that can be reached, in light of these facts, isthat the belief or opinion of Respondent that the effectiveness of itsFlag and Tag Rule was, vis-a-vis, comparable to that of a personalpadlock program, was one not reached in good faith. A fortiori, thereexists little to bar the way for the ultimate finding that thisemployer’s conduct was willful in nature. _KVS-TVM Builders,_ 10 BNAOSHC 1128, 1981 CCH OSHD para. 23,738; _Wright & Lopez, Inc._ (DocketNo. 76-0256), 10 BNA OSHC 1108, 1981 CCH OSHD para. 25,728; _Marshall_v._M. W. Watson, Inc., _652 F. 2d 977 (10th Cir. 1981), Judge’sDecision 1979 OSHD para. 24,009; _Mel Jarvis Construction Co.,_ 10 BNAOSHC 1053, 1981 CCH OSHD para. 25,713;_Wright and Lopez, Inc._ (DocketNo. 76-3743), 8 BNA OSHC 1261, 1980 CCH OSHD para. 24,419; _GeneralElectric Co., _5 BNA OSHC 1448, 1977 CCH OSHD para. 21,853; _WesternWaterproofing Co._ v. _Marshall,_ _supra; C. N. Flagg & Co.,_ 2 BNA OSHC1539, 1974-75, CCH OSHD para. 19,251.I find the actions of Respondent in failing to have in place a programwhereby padlocks are issued to employees, allowing them to lock openpower switches while they are engaged in repair or inspection ofequipment, to be an act showing a careless disregard of employee safetyand an intentional disregard of, or plain indifference to, the Act’srequirements. _Wright & Lopez, Inc._ (Docket No. 76-0256), _supra;_ _St.Joe Minerals Corp._ v. _OSHRC, _647 F. 2d 840, (8th Cir. 1981), andcases cited at Note 12 therein; _Western Waterproofing Co.,_ v._Marshall, supra; Babcock & Wilcox Co._ v. _OSHRC,_ 622 F. 2d 1160 (3rdCir. 1980); Empire-Detroit Steel v. OSHRC, 579 F. 2d 378 (6th Cir. 1978).Accordingly, I find that Respondent’s conduct in violating the generalduty clause, as alleged in the amended Complaint and Citation, waswillful in nature._ASSESSMENT OF PENALTIES_In the instant case, the Secretary has proposed an amended penalty of$10,000. This amount represents the maximum penalty that could beimposed for a willful violation.In assessing the appropriateness of a penalty, the first considerationshould be whether the proposed penalty satisfies the purposes of theAct. Next the Commission must consider \”the size of the business of theemployer being charged, the gravity of the violation, the good faith ofthe employer, and the history of the previous violations\”, as providedunder Section 17(j) of the Act_. St. Joe Minerals Corp., d\/b\/a St. JoeLead Co.– Smelting Division_, 10 BNA OSHC 1023, 1981 CCH OSHD para. 25,644.With respect to the size of Respondent’s business, this employer is alarge corporation with adequate facilities and personnel toexpeditiously deal with its occupational safety problems. Viewing thegravity of the violation, the evidence established that literallyhundreds of employees were exposed to the hazards caused by use of theFlag and Tag Rule as the means of obtaining positive lockout ofequipment under repair. The evidence further established that unexpectedactivation of equipment while under repair, and ostensibly guarded byflags, could result in serious injury or even death. The gravity of theviolation must be considered high.In determining the good faith of the employer, the record establishedlittle good faith on the part of Respondent in addressing the hazardscaused by imposition of its flag rule. Indeed, it was shown thatexpediency in bringing Respondent’s equipment which had been underrepair back into operation, as allowed under the flag rule, surpassedany consideration for the safety of employees. The history of this caseinvolves just too many incidents of employees narrowly escaping injury,or being exposed to hazards, by reason of the failures in Respondent’sflag rule — many of which were caused by Respondent’s own supervisors.While an employer’s training efforts would normally be a factor inadjusting a penalty in its favor, such is not appropriate in this case.Respondent’s activities in establishing training programs, allegedlydesigned to deal with the hazards incident to the flag and tag rule, wasdone not so much to provide a safe work place as it was to legitimizeits discredited flag rule long shown to be inherently flawed as a safetyrule. This case deals with a long history of employees being exposed tootherwise avoidable dangers caused by Respondent’s compassionlessadherence to its flag rule over the much sought after personal padlocksystem.I see no compelling reason why the maximum penalty should not be imposedin this case. After carefully reviewing the record, I find no supportiveevidence or legal basis why the proposed maximum penalty should receiveany adjustment. Imposition of the proposed penalty, it is believed, willserve as an inducement for quick abatement of the hazards throughoutRespondent’s workplace. Accordingly, I find the penalty of $10,000 inaccord with the purpose of the Act in assuring employees a safeworkplace. As such, that amount will be affirmed._OTHER MATTERS_The Respondent, in its post trial brief, argues that it was not affordedfundamental due process by the Administrative Law Judge during thehearing (labeled Point I). While a review of the record will show thateach party was afforded every opportunity to present that evidence itbelieved necessary to its case, and was afforded complete and unabridgedexamination and cross-examination of each witness (except whenrepetition became excessive), comment will be made to some ofRespondent’s arguments.Respondent has argued that certain documents were admitted into evidencewithout proper foundation. While the record demonstrates that anadequate foundation was laid for the introduction of each of thedocuments listed in Respondent’s argument, it should be recognized thatin an administrative hearing the technical rules of evidence become lessimportant when juxtaposed against considerations dealing with thereliability and probative value of the proffered evidence. Each documentallowed into evidence herein had that quantum of reliability andrelevancy which made it important to the issues in this case. _HurlockRoofing Company,_ 1979 CCH OSHD para. 24,006; Administrative ProcedureAct, 5 U.S.C. 556(d). Only marginally relevant evidence and evidenceconfusing, misleading, prejudicial or time wasting was not allowed intothe record.Respondent further argues that its case was prejudiced because theAdministrative Law Judge allowed into the record evidence and testimonywhich predated the six month period for issuance of a Citation underSection 9(c) of the Act. Respondents argument as a matter of law iswithout merit as has been determined so by the Commission and reviewingcourts. _Ford Motor Company,_ 1977-78 CCH OSHD para. 22,106; _EmpireDetroit Steel Division_ v. _OSHRC, _1977 CCH OSHD para. 22,813, 579 F.2d 378 (6th Cir. 1978). Additionally, such evidence was highly relevantin the determination of the issues in this case.Respondent’s next argument involves what it perceived as an inability ofthe Administrative Law Judge to render a decision on the various motionspresented at the close of Complainant’s case by reason of the fact thatthere existed a transcript of the hearing which had inaccuracies in it.While it is not the custom in these proceedings to have any part of thetranscript completed prior to the close of the hearing, it so happenedthat the trial schedule was spread over a period of time so as tofacilitate the personal schedules of the attorneys, and that thisallowed for part of the transcript covering the first few days of thetrial to become available prior to the close of Complainant’s case. Assomeone who was more than a were casual observer to these proceedings, Ifound it unnecessary to review the transcript prior to the conclusion ofthe hearing and submission of post trial briefs. The content orcondition of the transcript had no bearing whatsoever on the variousrulings made in this case. It can safely be said that it was solely thequality of the motions and the persuasiveness of the argumentssupporting those motions that was the basis for issuance of any order orruling.The final argument of Respondent that will be considered relates to whatit describes as \”inappropriate statements of the ALJ\”. In this regard,it will be for the reviewing bodies to determine whether any statementsof the Administrative Law Judge were inappropriate, rendering an unfairprejudice to any party, or whether those statements impinged upon thefairness of the proceedings. However, in Respondent’s listing of\”inappropriate\” statements, where Respondent has challenged the right ofthe Administrative Law Judge to ask questions of witnesses, I believeRespondent’s argument tears at the basic fabric insuring a fair trial.It is the responsibility of the Administrative Law Judge to assure thatthe facts of the case are fully elicited. Indeed it is the Judge’sobligation to ask questions so that record may reflect with clarity whatthe witnesses intended to convey. It is the Judge’s responsibility toquestion witnesses to clarify any confusing or ambiguous testimony or todevelop additional facts, and this is what was done. (OccupationalSafety and Health Review Commission Rules of Procedure, Rules 66 and 66(j); Federal Rules of Evidence, Rule 614 (b).Finally, the undersigned has not lightly taken this line of argumentmade by Respondent and by reason of this has reviewed and re-reviewedthe transcript to insure that fundamental fairness was given all partiesin this case during the hearing and subsequently in rendering adecision. In this regard, I searched through the record and have beenunable to find any instances where any party to these proceedings wasnot afforded fundamental due process. Additionally, I have takenparticular pains and efforts in writing the decision in a manner inwhich each party will know exactly how and why a particular conclusionwas reached — all of which may account in some measure for the lengthof this decision. After due consideration, I find no rational basis toalter these proceedings in any matter by reason of these arguments madeby Respondent._ORDER _Based upon the foregoing Findings of Fact and Conclusions of Law, as setout in my _Decision and Order,_ and for good cause shown, it is ORDERED:1. That item 1 of the Willful-Serious Citation 1 is AFFIRMED.2. A penalty of $10,000 is assessed.Edward A. BobrickJudge, OSHRCDated: March 11, 1982Chicago, Illinois————————————————————————FOOTNOTES:[[1\/]] Section 5 (a) (1) reads in pertinent part:(a) Each employer — (1) shall furnish to each of his employeesemployment and a place of employment which are free from recognizedhazards that are causing or are likely to cause death or seriousphysical harm to his employees.[[2\/]] The employee could also place a \”group flag\” whereby severalemployees working closely together would operate under one flag (Tr.138, 798, Ex. C-5-a, pg. 13, para. No. 2).[[3\/]] In the case of electrical equipment, main power switches areplaced in the open position. Pneumatic and hydraulic valves are placedin a closed position.[[4\/]] Respondent’s \”_Lock-out, Flag and Tag Rule\”_ found in Section VIIof its General Safety Rules for Employees (Ex. C-5-a) provides inapplicable part: (1) This rule is especially applicable to thoseemployees who oil, inspect or work around machinery and includes thosewho repair cranes or crane runways. The main switch handle controllingmachinery which will be repaired or inspected shall be opened and lockedout whenever provisions allow a lock to be used.The _lock shall beposted with a flag or tag_ before anyone shall be permitted to workaround or on the machinery involved. Plant procedure is to be followed.All flags and tags shall have the name, department symbol or code andcheck number of the man who places them. The flags and tags are to besecurely fastened with cord or non-metallic material. Wire is not to beused for this purpose. No one shall remove a lock, a flag or tag exceptthe person who places it except under the following conditions: In theevent that a person does not remove his lock, flag or tag and cannot belocated, and it is necessary to put the machine in operation, thesupervisor, after making a thorough check of the machinery in questionin company with a repairman, on turn, may remove the _lock,_ flag ortag. (Emphasis added)[[5\/]] After weighing the knowledge and experience of all expertwitnesses concerning the subject matter of this case, the self interestof the witnesses and the reasoning upon which their testimony is based,I find I cannot ascribe to Respondent’s witness the same degree ofreliability as I did with Complainant’s witnesses. I found Respondent’sexpert witness, while sincere in his views, not able to squarely dealwith those hard issues involving the consequences of flags beinginappropriately removed from open power switches (Tr. 1707, 1708). Thewitness’s offering of a synergistic review of Respondent’s basic flagrule did not bring any ready insight into the case (Tr. 1725). Further,the bulk of this witnesses’ testimony dealt with equipment not analogousto that involved in this case (Tr. 1753-1759).[[6\/]] There was significant testimony and evidence introduced showingthat prior to 1971 the Flag and Tag Program was not working as a meansof positive lockout protection for employees. This evidence consisted ofemployee testimony as well as documentation of grievances relating tothe removal by supervisors of flags from open switches (Tr. 578, Ex.C-28, Tr. 587, Ex. C-30, Tr. 1349-1530, Ex. R-4). Since these incidentsoccurred prior to the effective date of the Act, they cannot beconsidered actionable or relevant in any way and thus are viewed as notmaterial to the issues in this case. Accordingly, all evidence of thisnature has been disregarded in any conclusions reached herein.With respect to evidence outside the statutory six-month period referredto in Section 9(c) of the Act, but occurring subsequent to the effectivedate of the Act, I do not agree with Respondent’s view as to its lack ofrelevancy and admissibility. I find this evidence relevant, material,and admissible. _Ford Motor Co., _1977-78 CCH OSHD para. 22,106;_EmpireDetroit Steel Division v. OSHRC,_ 579 F. 2d 378 (5th Cir. 1978).[[7\/]] The statement of a BOF Mechanical employee was illustrative ofthe fact that while hourly employees tried to adhere and rely on theflag rules for protection, supervisory employees did not feel a likecompunction. \”We know the importance of it because it is our lives andour friends lives that we work with that are involved\” (Tr. 768).[[8\/]] The record, and the discussion of it, contains ample examples ofviolations of the terms, spirit and purpose of the Flag and Tag Rule byRespondent’s supervisors. I will not re-review them except to makereference to two incidents that portray the typical workings of the Flagand Tag Rule, and the attitude of Respondent and its supervisors towardthe rule as a means of obtaining employee job safety. One incidentinvolves a foreman who attempted to have one set of employee’s flagsplaced on open power switches for a second set of employees (Tr. 593,Ex. C-32). This subverted the entire purpose of the rule. A grievancewas filed challenging the actions of the supervisor. Then there is thetelling incident which took place as late as March 10, 1980. A foremanremoved a flag from an open power switch placed by an employee who wasthen working on a generator controlled by the flagged out power switch.The foreman who admitted removing the employee’s flag, without theemployee’s knowledge, found excuse for his conduct by stating \”employeestake each other’s blue flag and tag off as commonplace _don’t they\”_(Tr. 479, Ex. C-20). Significantly, no disciplinary action was everinitiated by Respondent toward the supervisor even though this was thesecond such incident in which he was involved — indeed, no disciplinaryaction had ever been taken by Respondent toward any supervisors forviolating the flag and tag rule (Tr. 621, 1195, 1264-1267, 1278, 1485,1579-1583).[[9\/]] As to industry recognition see pages 20-21 supra.[[10\/]] N. 4 supra[[11\/]] In support of its argument concerning the lack of lockoutfacilities, Respondent offered the testimony of an expert witness whodescribed how significant amounts of equipment at the plant could not bepadlocked. The testimony of this expert witness, however, concerneditself with high voltage electrical equipment which was a type ofequipment substantially different than that involved in this case. Theelectrical equipment referred to by Respondent’s expert in his opinionswas different in character to the mechanical equipment involved in thiscase since it had its own electrical switching devices which wereequivalent to padlocks, had these devices in close proximity to theequipment, was used only by skilled electricians, and was generally itsown power source (Tr. 1693-1695, 1734-1737, 1753, 1754-1759). I find thetestimony of Respondent’s expert not on point, offering little insightinto the contested issues by reason of the significant differencesbetween the equipment and its uses and purposes which formed the basisof his opinion, and that equipment involved in this case.[[12\/]] At the close of Complainant’s case, and immediately beforeRespondent proceeded with its part of the case, Complainant presented aMotion to Amend Complaint wherein paragraph IV(c) of the Complaint wasamended to allege that the charged violation constituted awillful\/serious violation within the meaning of Section 17(a) of theAct. Complainant further moved that paragraph IV(g) of the Complaint beamended with respect to the penalty proposed for Item 1 of Citation No.1 to allege that the proposed penalty be $10,000 (Tr. 1034). Afterallowing the parties ample opportunity to prepare and present theirarguments concerning the Motion to Amend (Tr. 1065, 1068, 1072,1088-1122), for those reasons announced at trial, I allowed Complainantto amend his Complaint characterizing the alleged violation as willfulin nature and changing the proposed penalty (Tr. 1122-1126).”